"Wild Law" Would Codify Nature as Subject, Not Object

I was probably fortunate to have studied law in apartheid South Africa. It meant that right from the beginning I was very aware that states use law as a method of social control, that laws reflect a particular view of the world held by those with political power, and that there is not necessarily a healthy relationship between law, justice and morality. It also meant that I was never in awe of the "majesty of the law" or believed that having a complex yet rationally consistent set of rules was an end in itself. The fact that I was involved in organizing student marches and other anti-government activities that were illegal at the time, also gave me a healthy disrespect for many of the involved debates that some legal theorists immersed themselves in. Issues such as whether or not there is a moral obligation to obey the law simply because it is the law, or whether or not a morally repugnant law is law, seemed simple in those days. Whatever the niceties of the various academic points of view, when confronted with really repugnant laws that are nevertheless enforced with whips, imprisonment and worse, the doubts evaporate. I, and many others, found that at these times we took guidance from our consciences and hearts and not from logic or theory. Valuable though logic is in discerning truth, sometimes the heart or intuition is a better guide in the turbulence of experience.

The proof of the pudding, as they say, is in the eating. In my view, the deteriorating condition of Earth is the proof that the human self-governance pudding has gone bad. Our systems for regulating human behavior are not protecting Earth, our home, from destruction, because that it not their purpose. The problem of inadequate self-regulation cannot be solved at the level of legislative reform. The problem is not simply that our laws need refining to be more effective. The fact is that, by and large, these laws do give accurate expression to the defective worldview that underlies them. Our legal and political establishments perpetuate, protect and legitimize the continued degradation of Earth by design, not by accident.

In this chapter I will discuss some examples that I think illustrate this point, as well as referring briefly to some of the jurisprudence that lies behind the legal systems of the cultures that currently dominate world society.

SYMPTOMS

There are few areas in which the arrogant and obsessively anthropocentric worldview of the dominant societies is more apparent than in the law. The law reserves all the rights and privileges to use and enjoy Earth to humans and their agents (and usually only selected categories of those, at that). It has also reduced other aspects of Earth and the other creatures that live on it to the status of objects for the use of humans. The grandiose constitutions of the mighty nations form the arching vaults of the homosphere, and describe it and its aspirations. The law prescribes how we relate to other humans, to other cohabitants of this planet and to Earth itself. It punishes and takes revenge on those who do not conform. It legitimizes the eternal extermination of species and the most profound disrespect and abuse of the Earth that sustains us.

If all this sounds like hyperbole, consider the following, which is true of the legal systems of almost all the cultures that currently dominate human society.

OTHER ASPECTS OF EARTH ARE DEFINED AS OBJECTS WITHOUT RIGHTS

Animals, plants and almost every other aspect of the planet are, legally speaking, objects that are either the property of a human or artificial "juristic person" such as a company, or could at any moment become owned, for example by being captured or killed. For as long as the law sees living creatures as "things" and not "beings," it will be blind to the possibility that they might be the subjects (i.e. the holders) of rights. It is simply legally inconceivable for an object to hold rights. In other words, the jurisprudence of most of the world does not recognize, as Thomas Berry expresses it, that "the universe is a communion of subjects, not a collection of objects."

Another consequence of recognizing only humans as beings, is that any sacred or spiritual dimension of any other form of life, or of Earth itself, is denied, and in the eyes of the law, does not exist.

The only rights recognized by law are those that are enforceable in a court of law, and these may only be held by human beings or by "juristic persons" like companies. This means that from the perspective of our legal systems, the billions of other species on the planet are outlaws, and are treated as such. They are not part of the community or society that the legal systems concern themselves with, and have no inherent right to existence or to have a habitat in which to live. This may sound like an exaggeration when most countries have laws that protect designated species and habitats, for example in national parks. However, this type of legislation does not confer rights on non-humans, it merely restricts some aspects of human behavior, usually to ensure that other humans can continue to enjoy wild areas and creatures.

Even if a legal system were to recognize that other species are beings, we must still overcome the difficulties of how any "rights" that they may have will be protected and asserted. This is difficult but essential. A right that cannot be enforced is not a right at all.

Cormac Cullinan is an author, practicing environmental attorney and governance expert who has worked on environmental governance issues in more than 20 countries. At the invitation of Bolivia, Cullinan spoke at the 2009 Climate Change Conference in Copenhagen and led the drafting of the Universal Declaration of the Rights of Mother Earth, which was proclaimed on April 22, 2010 by the People’s World Conference on Climate Change and the Environment in Bolivia. Cullinan also sits on the City's climate change think tank in Cape Town, South Africa, where he lives.

"Wild Law" Would Codify Nature as Subject, Not Object

I was probably fortunate to have studied law in apartheid South Africa. It meant that right from the beginning I was very aware that states use law as a method of social control, that laws reflect a particular view of the world held by those with political power, and that there is not necessarily a healthy relationship between law, justice and morality. It also meant that I was never in awe of the "majesty of the law" or believed that having a complex yet rationally consistent set of rules was an end in itself. The fact that I was involved in organizing student marches and other anti-government activities that were illegal at the time, also gave me a healthy disrespect for many of the involved debates that some legal theorists immersed themselves in. Issues such as whether or not there is a moral obligation to obey the law simply because it is the law, or whether or not a morally repugnant law is law, seemed simple in those days. Whatever the niceties of the various academic points of view, when confronted with really repugnant laws that are nevertheless enforced with whips, imprisonment and worse, the doubts evaporate. I, and many others, found that at these times we took guidance from our consciences and hearts and not from logic or theory. Valuable though logic is in discerning truth, sometimes the heart or intuition is a better guide in the turbulence of experience.

The proof of the pudding, as they say, is in the eating. In my view, the deteriorating condition of Earth is the proof that the human self-governance pudding has gone bad. Our systems for regulating human behavior are not protecting Earth, our home, from destruction, because that it not their purpose. The problem of inadequate self-regulation cannot be solved at the level of legislative reform. The problem is not simply that our laws need refining to be more effective. The fact is that, by and large, these laws do give accurate expression to the defective worldview that underlies them. Our legal and political establishments perpetuate, protect and legitimize the continued degradation of Earth by design, not by accident.

In this chapter I will discuss some examples that I think illustrate this point, as well as referring briefly to some of the jurisprudence that lies behind the legal systems of the cultures that currently dominate world society.

SYMPTOMS

There are few areas in which the arrogant and obsessively anthropocentric worldview of the dominant societies is more apparent than in the law. The law reserves all the rights and privileges to use and enjoy Earth to humans and their agents (and usually only selected categories of those, at that). It has also reduced other aspects of Earth and the other creatures that live on it to the status of objects for the use of humans. The grandiose constitutions of the mighty nations form the arching vaults of the homosphere, and describe it and its aspirations. The law prescribes how we relate to other humans, to other cohabitants of this planet and to Earth itself. It punishes and takes revenge on those who do not conform. It legitimizes the eternal extermination of species and the most profound disrespect and abuse of the Earth that sustains us.

If all this sounds like hyperbole, consider the following, which is true of the legal systems of almost all the cultures that currently dominate human society.

OTHER ASPECTS OF EARTH ARE DEFINED AS OBJECTS WITHOUT RIGHTS

Animals, plants and almost every other aspect of the planet are, legally speaking, objects that are either the property of a human or artificial "juristic person" such as a company, or could at any moment become owned, for example by being captured or killed. For as long as the law sees living creatures as "things" and not "beings," it will be blind to the possibility that they might be the subjects (i.e. the holders) of rights. It is simply legally inconceivable for an object to hold rights. In other words, the jurisprudence of most of the world does not recognize, as Thomas Berry expresses it, that "the universe is a communion of subjects, not a collection of objects."

Another consequence of recognizing only humans as beings, is that any sacred or spiritual dimension of any other form of life, or of Earth itself, is denied, and in the eyes of the law, does not exist.

The only rights recognized by law are those that are enforceable in a court of law, and these may only be held by human beings or by "juristic persons" like companies. This means that from the perspective of our legal systems, the billions of other species on the planet are outlaws, and are treated as such. They are not part of the community or society that the legal systems concern themselves with, and have no inherent right to existence or to have a habitat in which to live. This may sound like an exaggeration when most countries have laws that protect designated species and habitats, for example in national parks. However, this type of legislation does not confer rights on non-humans, it merely restricts some aspects of human behavior, usually to ensure that other humans can continue to enjoy wild areas and creatures.

Even if a legal system were to recognize that other species are beings, we must still overcome the difficulties of how any "rights" that they may have will be protected and asserted. This is difficult but essential. A right that cannot be enforced is not a right at all.

Cormac Cullinan is an author, practicing environmental attorney and governance expert who has worked on environmental governance issues in more than 20 countries. At the invitation of Bolivia, Cullinan spoke at the 2009 Climate Change Conference in Copenhagen and led the drafting of the Universal Declaration of the Rights of Mother Earth, which was proclaimed on April 22, 2010 by the People’s World Conference on Climate Change and the Environment in Bolivia. Cullinan also sits on the City's climate change think tank in Cape Town, South Africa, where he lives.